EPA closing on Spruce Mine veto

CHARLESTON, W.Va. -- The Obama administration has moved another step closer to blocking the largest mountaintop removal permit in West Virginia history, with a veto recommendation from the U.S. Environmental Protection Agency's regional administrator.

In an 84-page report with four appendices, Garvin outlined the EPA's concerns that the nearly 2,300-acre mine would bury seven miles of headwater streams and pollute waterways downstream from the mine site.

Garvin also warned that the mine would add to deforestation and to other damage that mountaintop removal already is doing to coalfield communities across the region.

The Spruce Mine would "eliminate the entire suite of important physical, chemical and biological functions" of affected streams and "likely have unacceptable adverse effects" on wildlife, the EPA said in its report.

Garvin issued his recommendation to EPA administrator Lisa P. Jackson three weeks ago, but agency officials had refused to publicly release it until pressured to do so by a federal judge.

The EPA said in a statement that a final decision is expected later this fall, but agency lawyers on Friday asked U.S. District Judge Robert C. Chambers to extend a stay on litigation over the permit for 120 days -- until Feb. 22, 2011.

Agency spokesman Brendan Gilfillan said the EPA asked for the longer court stay in case of "any unanticipated issues or additional significant information" that arise during talks with Arch Coal.

"[The] EPA's next step will be to reach out to the mining company, the U.S. Army Corps of Engineers and West Virginia state officials to engage in discussions about potential actions that can be taken to reduce impacts to the environment and to the waters that Appalachian communities depend on for drinking, swimming and fishing," Gilfillan said.

In the past year, EPA efforts have produced two mining permits in which much of the coal reserves could be mined, while impacts on water quality were significantly reduced.

Arch Coal already has sued the EPA in federal court over the agency's handling of the Spruce Mine permit. Company spokeswoman Kim Link said an EPA veto of the permit would mean that any legally issued Clean Water Act permit "can be revoked at any time according to the whims of the federal government."

Rep. Nick J. Rahall, a Democrat who represents Logan County, said the EPA action on the Spruce Mine "sets a disturbing precedent for the course of coal mine permitting that will undermine the confidence of investors and intensify the concerns of miners already on edge about the future of their careers."

Under the Clean Water Act, the Corps of Engineers generally reviews and approves "dredge-and-fill" permits that allow mining operators to bury streams with millions of tons of waste rock and dirt. Congress gave the EPA broad authority to step in -- at any time, even after permits are issued -- and block such waste dumping if it believes the damage is too great or could have been avoided.

Environmental groups have been trying to stop the Spruce Mine since 1998, when it was proposed as a 3,113-acre extension of Arch's Dal-Tex Mine that would have buried more than 10 miles of streams in the Pigeonroost Hollow area near Blair.

Then-U.S. District Judge Charles H. Haden II blocked the permit in 1999, putting more than 300 United Mine Workers members at Dal-Tex out of their jobs. Since then, Arch has transferred the site to its nonunion operations and the Spruce Mine has undergone one of the most detailed environmental studies ever in the coal industry.

Corps officials in January 2007 issued a permit for a scaled-back version, a 2,300-acre operation that would bury more than seven miles of streams. The mine eventually would employ 250 workers to mine about 44 million tons of coal over about 15 years.

Since then, the permit has been tied up in court, with Arch's Mingo Logan subsidiary operating on a limited scale with about two-dozen workers.

In its new report, the EPA reveals that even the small operations currently under way at the Spruce site have violated West Virginia water-quality limits for toxic selenium more than a third of the time. Additionally, the agency says its studies show prior mining at the Dal-Tex site eliminated about 70 percent of the types of insects and other small aquatic life in the streams that mining drained into.

The EPA also predicted that water pollution from the Spruce Mine would make Pigeonroost Branch and nearby Oldhouse Branch ripe for growth of the "golden algae" that is believed to have caused a massive fish kill last year in Dunkard Creek, along the West Virginia-Pennsylvania border.

Critics have complained that the EPA has been stalling its decision on the Spruce Mine until after the Nov. 2 election, amid heated campaigns in West Virginia in which Rahall and fellow Democrat and U.S. Senate candidate Gov. Joe Manchin are accused of not supporting the coal industry enough.

On Friday, Sen. Carte Goodwin, a Democrat appointed to temporarily fill the seat that was made vacant by the death of Sen. Robert C. Byrd, D-W.Va., joined Manchin, Rahall and Republican Rep. Shelley Moore Capito in denouncing the EPA's latest move on the Spruce Mine.

"Four years ago, federal officials approved operations at this site," Goodwin said in a prepared statement. "Since then, Arch Coal has invested significant time and resources, armed with the security of federal regulatory approval, only now to face a potential arbitrary permit revocation by another agency -- the EPA."

The EPA noted that the Spruce Mine has been tied up in litigation filed by environmental groups since the corps issued the permit in January 2007.

"While the litigation was pending, the scientific literature began to reflect a growing scientific consensus of the importance of headwater streams, a growing concern about the adverse effects of mountaintop removal mining, and concern that impacted streams cannot easily be replaced," the EPA said.